“Conservatives” and the Courts
I have long noted that there are no real conservatives in the United States.
Donald Trump plus Brett Kavanaugh prove the point.
The ridiculous reduction of options in political discourse to the pair of “liberal” and “conservative” dates, in Anglo American political philosophy, to the Glorious Revolution in late 17th century England. In that series of events, the people who took the position we would now denominate “conservative” were monarchists. They argued that the King of England derived his authority by genetic descent from Adam and therefore ruled by divine right. On this logic, to defy the King was to defy god.
What we would denominate the “liberal” position came from philosopher John Locke, who said the argument for the divine authority of the King was rank nonsense and that all legitimate political authority emanated from the governed, and that the governed retained ever the right to withdraw their consent from the existing government and replace it. Locke’s political philosophy provided useful intellectual cover to the people in England who wanted to remove James II from the throne and replace him with William and Mary.
Locke’s ideas about everything, including politics, had enormous influence in the British colonies of North America, and the Declaration of Independence, as the first official act of what would become, after the American Revolution, the United States of America, comes pretty directly out of Locke’s major work, the Second Treatise of Government.
The Declaration of Independence was mostly a notice that the colonists in North America no longer recognized the authority of the King of England and was thus anathema to all good royalists, who decamped as soon as its proponents promulgated it, thus eliminating, almost entirely, ideological conservatives from the new United States of America.
The closest we had were the slave owners, who were good conservatives in preferring the order of slavery to the individual rights of the slaves, but who could resolve the cognitive dissonance of being good liberals in public by denying their slaves the humanity that claims to individual rights depend on. Thomas Jefferson, in his Notes on the State of Virginia, says some dreadful things about his slaves.
Granting the glaring failure to live fully up to their high ideals, as a philosophical proposition, the government of the United States, as defined in its new constitution, was a distinctively liberal institution. The constitution itself is a social contract, a definitively liberal idea, and the new government came into existence only as an assertion of popular sovereignty, which the new constitution also articulated — “We, the People” — against the claims of a monarch, which was a definitively liberal act.
These historical facts put anyone who tries to be a conservative and a loyal citizen of the United States into a severe intellectual bind. How to be a good monarchist in a republic that owes its founding to the repudiation of a king? To be sure, conservatism is always relative to the culture it exists in, so one can make a moderately respectable claim to want to defend the traditions of the politics and culture of the United States. Which necessarily grow out of England, which is still a monarchy, but by your leave.
In theory, one could even muster a reasonable version of U.S. conservatism that strove to pick out the wheat of our egalitarianism and willingness to innovate — or you pick your good qualities in U.S. political history — and blew away the chaff of slavery and racial segregation.
But that is not what U.S. “conservatives” have typically done. The godfather of modern U.S. “conservatives” is William F. Buckley, who wrote explicitly to defend racial segregation because those wacky black people just were not ready for political and social equality with fine, upstanding white people in the 1950s and 1960s. This be the conservative position in the United States. At least he was honest, just as U.S. Senate candidate Roy Moore was when he suggested very recently that we were better off with slavery.
The rule of law is one thing conservatives of all stripes and liberals in the United States should be able to agree on. Law is usually inherently conservative in being the constraints of the past imposed on the present. But, with the primary source of law in the United States being the distinctively liberal U.S. Constitution, drawing its intellectual authority from the claim that all men are created equal and enshrining the principle of due process of law, as well as liberal ideas like the guarantee of freedom of speech and the press and the rights to assemble peaceably and to petition government, it has also enabled some pretty liberal political developments, especially in the post World War II period, when first African Americans, then women, then LGBT persons, then the disabled, and now persons with autism, have used that guarantee of free speech and press to their advantage, winning important victories in law and policy.
One would especially think that any individual, “conservative,” liberal, or otherwise, who owns a significant quantity of real estate would especially value the courts as the primary mechanism for ensuring the rule of law in our culture. Yet here we have a president from the notionally “conservative” Party who is so fixated on what he perceives to be his own immediate political interests that he is happy to disparage any judge who produces a decision he doesn’t like despite owing whatever fortune he actually has, as well as the petty fame that enabled him to run for president to begin with, to the real estate empire his father built through some hard work and likely a more than a few illegal maneuvers.
And now our “conservative” president has truly achieved the pinnacle of “conservatism,” U.S. style, by appointing a judge to our highest court who is truly made in his image. Perhaps the most notable feature of the “conservative” president was his eager, almost joyful, perpetuation of that nasty feature of U.S. history and culture, the consistent attempt to treat virtually all woman as nothing but playthings for men’s sexual enjoyment. So, the “conservative” justice the “conservative” president picked out stands credibly accused by at least three women of having committed severe acts of sexual assault as a high school and college student, which should not surprise us since he grew up firmly in the grip of perhaps the single most conservative institution in western culture tout court, which unsurprisingly is also a major bastion of retrograde, hideous ideas and action on any issue of gender or sexuality, the Catholic Church, which still practices official discrimination against women in employment and takes the position at once that no one should use contraceptives or have an abortion, and which illustrates its ideas about male sexuality and morality by consistently concealing child sexual abuse by priests. Conservatism, indeed.
Kavanaugh, then, is a shining exemplar of the idiocy that is “conservatism,” U.S. style — a man who apparently committed sexual assault during his education at the hands of men who want to demean women and control their bodies and sexuality in service to men.
Such is the “conservatism” of Donald Trump and Brett Kavanaugh.
